Kali Bain v. State of Rajasthan — 1998 DIGILAW 761 (RAJ)

Honble SINGH, J.–This petition u/s 482 Cr. P.C. is directed against the order dated 22nd November, 1997 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate, Ist Class, Abu Road in criminal case no. 354/97. By the impugned order, the learned Judicial Magistrate rejected the application filed by the petitioner u/s 457 Cr.P.C. for releasing the vehicle (Jeep) No. GJ 9/5159. (2). On 27th November, 1997 when the petition came for hearing, after hearing the learned counsel for the petitioner, the Court deemed it fit to issue notice to the non petitioner to show cause why the petition should not be admitted and finally disposed of. Record of the lower Court was also called. On 14.12.97, the arguments were heard in part. On 8.12.97, after taking into consideration the facts and circum- stances of the case, it was ordered that a notice be issued to the concerned Transport Authority to show cause why the petition should not be admitted and finally disposed of. On 4th July, 1998, the Public Prosecutor represented before the Court that she had received a communication frOm the R.T.O., Sirohi alongwith the copy of the challan prepared at the time of seizure of the jeep. In view of the submi- ssions made by the Public Prosecutor, notice to R.T.O., Sirohi was dispensed with, because the R.T.O. Sirohi was represented by the Public Prosecutor. (3). The learned counsel for the petitioner has submitted that in view of the authorities cited before the learned Judicial Magistrate, the application filed by the petitioner u/S. 475 Cr.P.C. was maintainable and it should have been disposed of on merits and that the learned Judicial Magistrate was not justified in rejecting the application on the ground that he had no jurisdiction to entertain the application. (4). A perusal of the record of the lower Court shows that according to the averments made by the petitioner in his application dated 18th November, 1987, the petitioner purchased the Jeep No. GJ 9/5150 from Mukesh Kumar after obtaining a No Objection Certificate. The jeep was registered in Gujarat and it was brought to Rajasthan and certain instances were taken place to get his name registered in the registration certificate. The jeep was registered in Gujarat and it was brought to Rajasthan and certain instances were taken place to get his name registered in the registration certificate. It was further averred in the application that the jeep was not a public vehicle and the persons, who were found travelling in the jeep were allowed to sit in the jeep on their request, as they belong to the village of the petitioner. It was further stated in the application that above mentioned jeep of the petitioner was seized by the R.T.O. Sirohi and that the same was not needed by the police for the purpose of investigation. (5). Before the learned Judicial Magistrate, Abu Road, it was contended on behalf of the State that the jeep belonging to the petitioner was being used as a pu- blic vehicle and passengers were carried in the jeep on hire and seizure of the jeep was effected, because of non payment of tax, and therefore, the application of the petitioner was not maintainable u/s 457 Cr.P.C. The learned Judicial Magistrate passed the impugned order on the ground that he had no jurisdiction to entertain the application as the jeep had been seized by the R.T.O., Sirohi u/s 17 of the Rajas- than Motor Vehicles Taxation Act, 1951. (6) Section 17 of the Rajasthan Motor Vehicles Taxation Act, 1951 reads :- ``17 Power to stop a motor vehicle-(1) Any police officer in uniform not below such rank, as may be prescribed and any officer of the Transport Department not below the rank of a Sub- Inspector and any officer of the Commercial Taxes Department not below the rank of an Inspector posted at the check posts controlled by the Commercial Taxes Department may require the driver of any motor vehicle in any public place to stop the vehicle and cause it to remain stationary so long as may reasonably by necessary for the purpose of satisfying himself that the amount of the tax due in accordance with the provi- sions of this Act in respect of such vehicle has been paid. (2) Where any tax due in respect of any vehicle has not been paid, any officer referred to in sub-section (1), may seize and detain such vehicle and take or cause to be taken such steps as he may consider necessary for the safe custody of the vehicle until it is produced be- fore the Taxation Officer of the area concerned within a reasonable time or the tax due in respect of the vehicle is paid; Provided that where the vehicle so seized is a non- transport vehicle, such officer may release the vehicle after obtaining a bond for a sum not exceeding Rs. 500/- from the driver of the owner or any person having possession or control of the vehicle, as the case may be, for depositing the tax within the period specified in the bond; Provided further that the provisions of sub-section (2) shall not apply to non-transport vehicles registered in Rajasthan. (7). A bare perusal of Section 17 of the Act shows that sub- section (1) of this section empowers the officers mentioned in the sub-section to stop the vehicle and cause it to remain stationary so long as may reasonably be necessary for the purpose of satisfying himself that the amount of the tax due in accordance with the provisions of the Act has been paid. The power under sub-section (1) of Section 17, cannot be exercised for seizing the vehicle or keeping the vehicle in custody for any period longer than what is reasonably necessary for the purpose mentioned in this sub-section. Sub-section (2) of Section 17 confers an additional power to seize and detain a vehicle in respect of which ``any tax due has not been paid. The powers under sub-section (2) of Section 17 cannot be exercised in those cases where the tax has already been paid or there is nothing to show that any tax was due, but it was not paid. (8). In the instant case, the learned Public Prosecutor has submitted that the seizure of the jeep was effected under sub- section (2) of Section 17, as as the tax was not paid. It is further submitted by him that although, the jeep was registered as a private vehicle, but was used as a public vehicle for carrying passangers on hire and the tax, which is payable on such vehicles, was not paid. (9). It is further submitted by him that although, the jeep was registered as a private vehicle, but was used as a public vehicle for carrying passangers on hire and the tax, which is payable on such vehicles, was not paid. (9). The learned Public Prosecutor has submitted that in-spite of information, the R.T.O., Sirohi has not sent information whether any tax under the Rajasthan Motor Vehicles Taxation Act, 1951 was assessed and found due. (10). Having regard to the time, which has elapsed since the date of seizure of the jeep and the casual manner in which the R.T.O., Sirohi has acted in the matter of submitting the relevant information before the Court, I have no alternative, but to hold on the basis of the facts available on record that it is difficult to say that any tax was due in respect of jeep of the petitioner. Merely, because the officer conducting a checking under sub-section (1) of Section 17 of the Act, thinks that some tax is due, the tax in fact does not become due. The conclusion that any tax is due in respect of any vehicle, which is intended to be seized and detained under sub-section (2) of Section 17 must be based on relevant and sufficient material. In cases of this kind, where the allegation is that a private vehicle was being plied as a public vehicle for the purpose of carrying passangers or goods on hire before the tax payable on such vehicles is found due, it must be ascertained by the competent authority whether the vehicle was in fact being plied as a public vehicle for carrying passangers or goods on hire and in case it is found that the private vehicle was be- ing used as a public vehicle, the tax must be assessed by the competent authority in accordance with the provisions of the Act. So long the tax is not properly assessed by the competent authority, the allegation that the tax was due and was unpaid, cannot be said to be well established, merely because the officer, who seized the vehicle under sub-sec. (1) of Sec.17 of the Act, has made allegation in this behalf. (11). So long the tax is not properly assessed by the competent authority, the allegation that the tax was due and was unpaid, cannot be said to be well established, merely because the officer, who seized the vehicle under sub-sec. (1) of Sec.17 of the Act, has made allegation in this behalf. (11). In view of the above mentioned circumstances, I am of the view that if the authority seizing a vehicle under sub-section (2) of section 17 of the Motor Vehicles Taxation Act, 1951 does not satisfy the Court that any tax in respect of the vehicle seized by him was in fact due and was unpaid, the Court of the Magistrate will have the jurisdiction to entertain the application and pass orders on it accord- ing to law. In such cases, if it is not established that any tax in respect of the vehicle was in fact due and was unpaid, the seizure of the vehicle would not be covered by sub-section (2) of Section 17 of the Rajasthan Motor Vehicles Taxation Act, 1951, and therefore, the jurisdiction of the concerned Magistrate would not be ousted. It would be proper to point out that in cases of this kind, it would be proper for the learned Magistrate to give an opportunity to the concerned R.T.O. to show that any tax was in fact due and that was unpaid and that the seizure of the vehicle was legally justified under sub-section (2) of Section 17. (12). For the reasons mentioned above, this petition deserves to be allowed and is hereby allowed. The impugned order dated 22nd November, 1997 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate, Ist Class, Abu Road is hereby quashed and set aside. Since, the R.T.O. Sirohi has not produced any document to show that any tax was in fact due and was unpaid, the jurisdiction of the learned Judicial Magistrate, Abu Road was not ousted on the ground that the seizure of the vehicle purported to be under sub-section (2) of Section 17 of the Rajasthan Motor Vehicles Taxation Act, 1951. (13). The case is remanded to the learned Judicial Magistrate, Abu Road with the direction to dispose of the application filed by the petitioner in accordance with law after hearing both the parties. (13). The case is remanded to the learned Judicial Magistrate, Abu Road with the direction to dispose of the application filed by the petitioner in accordance with law after hearing both the parties. Nothing contained in this order shall prevent the R.T.O. Sirohi from taking appropriate steps for the assessment of any tax, which may be due in respect of the vehicle in question and in case, it is established that any tax was due and it was unpaid, it would be open to the R.T.O. Sirohi to move the concerned Magistrate for giving a direction to the petitioner to produce the vehicle before the Court. (14). The petition is disposed of accordingly. A copy of this order alongwith the record of the lower Court be sent to the learned Judicial Magistrate.